Messages - Esq

It has been said by others that when students use the IRAC method (Issue, Rule, Application, Conclusion) to write their answers, the area where most students fall down is the APPLICATION section. The Application needs to apply the law to the facts. Now, there are some law school professors who want to see a policy discussion, but it's best not to assume that the professor cares about policy. Many do not. If you spend your precious time writing about policy on an exam given by a law professor who doesn't care about policy, your grade suffers. Many issue-spotter exams test exactly what their name implies, the ability to spot issues. Often, the conclusion that you reach is not the most important part of the exam; but you should reach a conclusion. See Eight Secrets to Law School Exam Success, Charles Whitebread.

Again, I'm not saying that the person who wrote the fact-pattern above wrote a great law school exam question. However, sometimes the most brief, the most ambiguous, the most sketchy, fact pattern can be the most difficult. That's why in ONE-L, the feared Contracts professor who always wanted to be known as the most difficult professor at Harvard Law School gave his students for their one and only final exam "a disordered series of phrases of various nursery rhymes." Scott Turow, One-L, (Warner Books 1977) p. 268.

The LSAC study shows that of the two variables, Law School Grade Point Average (LGPA) and LSAT score, the LGPA is a stronger predictor of first-time success on the bar exam. When you take both the variables together, you get a stronger predictor model.

It would be helpful to include the entire LSAC report here, but it's over 90 pages in length and to my knowledge it is not on-line. However, here is an excerpt:

"But a model that includes only these two explanatory variables [LSAT and LGPA] leaves a substantial amount of the variability in bar examination outcomes (approximately 68 percent) still unexplained. This study evaluated many additional models that were formed by adding new variables to the LGPA and LSAT score model. Even though two other measurement variables (UGPA and undergraduate school selectivity) provided statistically significant improvement to the chi-square statistic of model fit, the increase in the amount of variance explained by the expanded models was less than one percent for each. The remaining variance might be explained by a host of still other factors including, for example, access to information and preparation for the bar exam. The identification and study of other potential explanatory factors that were beyond the scope of this report should be undertaken in the future." Linda Wightman, LSAC Longitudinal Study, 1998, p 77.

The other point I wanted to make is that the LSAC is sufficiently concerned about the misuse of the LSAT that they have created committees to propose certain reforms. One reform is to only provide the law schools with a percentile rank (not the student actual LSAT score). Another reform involves actually sending a prediction of how LSAC thinks the student will perform in law school. Interestingly, these reforms may impact USNWR and how they do their cardinal rankings because LSAT score remains a key factor in how USNWR determines a school's rank.

It's probably statistically significant, but again, at least for LSAC study of individuals (LSAC studied 23,000 law students that went through law school in 1991) it was not as strong a predictor as Law School GPA.

The LSAC makes an important point about outliers. Clearly, there are many outliers in a system as large as we're talking about. They wrote the Letter to the Editor to clarify that they hoped people would not go around and say, "If you have a 155 LSAT you have a predictive pass rate of 72.5%." A school may have an entering class with a 155 average LSAT and the school may have after three years when that class graduates and takes the bar, an average pass rate of 72.5%, but that doesn't mean that an individual who has a 155 has a 72.5% chance of passing the bar.

The predictive value is what you'd be wrong about. In other words, and according to that single law school study, you wouldn't have LSAT as the strongest predictor variable. Say you had two individuals, both had a 152 LSAT. There are other variables that could make the prediction stronger. I'd like to know their LS GPAs, for example. But this is restricted to only LSAT, a single variable.

LSAT does have a strong relationship to bar performance in the aggregate. With a larger pool, you will see a relationship. Again, your argument is using aggregate statistics against individual statistics. The LSAC wrote that aggregate data show "that for one year, students from a school with an LSAT mean of 155 had an average bar passage rate of 72.5 percent. Given the fact there is a positive, although somewhat modest, relationship between LSAT scores and bar passage (again, 0.30 from the Bar Passage Study), it is no surprise that aggregate LSAT data have a strong relationship to aggregate bar performance. Aggregate data mask the existence and statistical effects of individual outliers--those whose performance on the bar doesn't fit well with their performance on the LSAT." Jim Vaseleck, Law School Admission Council, Letter to the Editor, The Bar Examiner, February 2005, p 42.

You can also see how hard it is to stay on topic. Inevitably, you get out of the test wondering if you addressed all the issues, and you start to worry.

Then another student comes up to you and says, "Did you get the strict products liabilty issue?"

You say, "What strict products liabilty issue?"

And the other student says, "The car went out of control, strict products liability."

For a moment, you panic. Could the other student be right? Of course, you don't have the exam with you because you had to turn in both your blue book and the test question to the professor. You seem to remember that the call of the question asked you to address whether B could recover for his injuries against the driver. But the call of the question had some kind of typo in it (something like, "against his injuries"). You just ignored the typo because it was just a typo. Or was it? Did you just make a horrible mistake? Could the other student be right? You don't know. Then you start to convince yourself you blew it. And you won't know for several weeks if you did blow it--until the grade comes back. But tomorrow, you have your Contracts final and you've got a 50 page outline and you'd better get to studying.

I'm not saying that the person who posted the hypothetical "fact pattern" above wrote the perfect Torts question. However, it does show that sometimes test questions, when you're confronted with them under time pressure, seem ambiguous and you want more information.

You may ask yourself: well, is it an emergency, was the femur broken, how far were they from a ranger station? But all you have are the facts as presented and perhaps 30 minutes or so to write an answer. And remember, there is just one exam determining your whole grade for the semester. I've even been told that some law professors say before the test, you have all the facts you need to answer the question. So, you just have to take the facts as presented and try your best to come up with an answer.

ISSUE: The issue is whether a person attempting a rescue who enters into a vehicle when the driver has informed the person that the driver has been drinking would be barred from recovering for injuries caused by the driver by the assumption of the risk statute.

RULE: The rule is that where a plaintiff voluntarily and knowingly assumes a risk, the defendant has a defense of assumption of the risk that precludes the plaintiff from recovering. The statute creates no exceptions for minors. However, one exception where the assumption of the risk defense does not apply has to do with an emergency situation. The emergency exception is reflected in the language of the statute because B did not voluntarily assume a risk created by the emergency.

APPLICATION: Here, based solely on the facts presented, an emergency exists because A has a broken leg and is incapable of walking and is helpless in the wilderness as night is falling. B, who has no other alternative because it is a lonely road and B has already waited for a long time before this one car has appeared, is reacting to that emergency and is trying to rescue A.

CONCLUSION: Therefore, because an emergency exists in a rescue situation, the assumption of the risk defense may not apply to B and B may seek a recovery from the driver for B's injuries.

The LSAC is saying that law school G.P.A. is a better predictor of success for an individual on the bar exam than the LSAT is. Another point they are making is that if you take a school with an average LSAT of 164 and a bar pass rate of 89 percent, you cannot take an individual with an LSAT score of 164 and say that person has an 89 percent chance of passing the bar on the first attempt.

Other studies at the law school level have shown if you know an individual's law school GPA and tried to predict the individual's success on the bar exam, you would be wrong as to the reasons almost 70 percent of the time, because you can only predict with about 30 percent accuracy. If you only know the individual's LSAT score, and you tried to predict, you would be wrong 98.6 percent of the time.

In Rebecca Luczycki's article, Rankings Issue May Change Test Score Reporting, National Jurist, Feb 2003, page 15, LSAC spokesperson, Ed Haggerty, was quoted as saying: "Many law schools are forced, in order to increase their rankings, to overemphasize LSAT scores in their admissions process. The LSAT score has been skewed, and not for the purpose of assembling the best class, but more for the purpose of manipulating the rankings. That's not the purpose of the LSAT."

Interestingly, one LSAC "reform" proposal to address the problem is to have LSAC release only the percentile ranking for a student, not the LSAT "score." In other words, the law school wouldn't even see a 158 or 160 LSAT, it would only see that student X was in the 76th percentile. The other "reform" proposal the LSAC working group studying the issue is developing is an option to report LSAT scores in the form of a predicted first-year GPA at a specific law school. Id.